On October 11, 2021, Governor Greg Abbott issued Executive Order (EO) No. GA-40, prohibiting any entity in Texas from requiring any individual, including an employee, to receive a COVID-19 vaccination if that individual objects to the vaccination “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”
The issue of the proper application of the highly compensated employee exemption under the Fair Labor Standards Act (FLSA), as it applies to employees paid on a “day-rate” basis in the oil and gas industry, has been a hotly debated issue in recent years, especially in the Fifth Circuit Court of Appeals.
Navigating the unemployment benefit administrative process under the Texas Unemployment Compensation Act can be difficult for employers. The act limits the type of conduct that may disqualify a claimant from receiving benefits, but it does provide for disqualification “if the individual was discharged for misconduct connected with the individual’s last work.” Employers’ notions of “misconduct” do not necessarily match the act’s definition of “misconduct.” A recent Texas appellate court decision, Texas Workforce Commission v. Dental Health for Arlington, Inc., provides guidance for employers regarding the factors required to establish misconduct that would disqualify a former employee from receiving unemployment benefits.
On August 11, 2021, Dallas County Judge Clay Jenkins signed an emergency executive order, taking effect at 11:59 p.m. that same day, requiring “all child care centers and Pre-K through 12 Public Schools operating in Dallas County,” as well as “all commercial entities in Dallas County providing goods or services directly to the public,” to “develop and implement a health and safety policy” that requires “universal indoor masking” regardless of vaccination status.
Texas courts generally look to federal courts’ interpretation of federal anti-discrimination laws to assist in interpreting the anti-discrimination provisions of the Texas Commission on Human Rights Act (TCHRA). However, the provisions of the TCHRA do not always exactly mirror the language of parallel federal anti-discrimination laws. The Texas Supreme Court recently examined such differences in interpreting the scope of the anti-retaliation provisions of the TCHRA.
Arbitration agreements are intended to expedite the legal process while minimizing fees and costs. In reality, former employees and their counsel often resist submitting their employment claims to arbitration, resulting in protracted and expensive litigation before trial and appellate courts on the issue of whether there is an enforceable arbitration agreement. This year, the Supreme Court of Texas issued two key decisions that may provide employers with stronger legal grounds for enforcing their arbitration agreements.
Effective September 1, 2021, any employer that employs “one or more employees” or that “acts directly in the interests of an employer in relation to an employee” will be considered an employer under Texas law and subject to a heightened level of scrutiny for sexual harassment claims under Texas law. The new law is a significant change from the current standard, which shields employers with fewer than 15 employees from liability regarding sexual harassment claims.
On June 7, 2021, Texas Governor Greg Abbott signed into law legislation that prohibits government entities from requiring individuals to provide evidence of COVID-19 vaccination status and strongly discourages private businesses in Texas from requiring what has become known as “COVID-19 vaccine passports” from customers.
Texas Governor Greg Abbott is expected to sign the Firearm Carry Act of 2021 (House Bill 1927) into law. Texas will join several other states that have enacted or plan to enact similar permitless, “constitutional carry” statutes in support of the individual right to keep and bear arms under the Second Amendment of the U.S. Constitution.
Twenty-two of 27 Republican-led states have announced that they will end enhanced federal COVID-19 unemployment benefits early. Of those, four (Arizona, Montana, New Hampshire, and Oklahoma) will offer additional monetary incentives for individuals to return to work. To date, no state with a Democratic governor has chosen to opt out of the COVID-19–related enhanced federal unemployment programs.
States have been busy when it comes to marijuana laws. Before the mid-2010s, employers tended not to worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are over, and state marijuana legalization laws continue to affect how employers can run their workplaces.
In Tarrant County College District v. Sims, No. 05-20-00351 (March 10, 2021), the Court of Appeals for the Fifth District of Texas held that “claim[s] of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA).” The Sims decision represents the first time that Texas law has been interpreted to provide workplace protection for LGBTQ workers and it follows on the heels of the June 2020 decision from the Supreme Court of the United States in Bostock v. Clayton County, Georgia, ruling that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity.
On March 10, 2021, the Texas Fourth Court of Appeals affirmed the District Court of Bexar County’s entry of a temporary injunction preventing the City of San Antonio’s sick and safe leave ordinance from taking effect. The appellate court reasoned that San Antonio’s ordinance was preempted by the Texas Minimum Wage Act (TMWA) and was thus unconstitutional.
The Texas Commission on Human Rights Act (TCHRA) prohibits discrimination in employment based on sex. The state law defines “sex discrimination” to include “discrimination because of or on the basis of pregnancy, childbirth, or a related medical condition.” In South Texas College v. Arriola, a Texas appellate court considered for the first time whether the TCHRA protects an employee who has announced her intention to become pregnant.
Employers recognize that the Fair Labor Standards Act (FLSA) requires that they pay nonexempt employees overtime wages for all hours worked in excess of 40 hours in a workweek. Additionally, the FLSA imposes recordkeeping requirements on employers regarding the hours worked by their nonexempt employees. A recent Fifth Circuit Court of Appeals decision, U.S. Department of Labor v. Five Star Automatic Fire Protection, LLC, illustrates the danger to employers when they fail to keep complete timekeeping records of their nonexempt employees’ work.
On March 2, 2021, Texas Governor Greg Abbott issued Executive Order No. 34 (GA-34), rescinding most of his earlier executive orders related to COVID-19, including the statewide mask mandate and business occupancy restrictions. GA-34 becomes effective at 12:01 a.m. on March 10, 2021.
Over 1,500 COVID-19–related employment lawsuits were filed in the United States in 2020. Ogletree Deakins’ Interactive COVID-19 Litigation Tracker highlights the industries impacted, locations, and types of claims in these matters.
As the COVID-19 vaccine becomes more readily available, employers are considering mandatory vaccination for their employees and in particular, how to respond to employee requests for accommodation, whether on the basis of disability or religion. In Horvath v. City of Leander, the U.S. Court of Appeals for the Fifth Circuit recently considered an employer’s proposed accommodations to a firefighter who refused a mandatory tetanus, diphtheria, and pertussis (TDAP) vaccine for religious reasons, and its analysis now provides timely guidance to employers considering a different type of mandatory vaccine.
On January 12, 2021, the Fifth Circuit Court of Appeals issued a landmark decision rewriting the rules for obtaining certification in collective actions under the Fair Labor Standards Act (FLSA).
Employers understand they have an obligation to investigate complaints of workplace misconduct. However, communications made during internal investigations are not totally without risk. Reports of misconduct, such as theft, assault, or abuse of others, can raise the scepter of defamation claims if the employer does not properly manage the communications. Further, while a qualified privilege exists for potentially defamatory statements made during misconduct investigations, such privilege is not absolute and can be lost.
Elections in the United States are scheduled for Tuesday, November 3, 2020. Not only will the office of president of the United States be contested, but all 435 seats in the U.S. House of Representatives and 35 of the 100 seats in the U.S. Senate are up for grabs. At the state level, elections will be held for the governorships of 11 U.S. states and 2 U.S. territories.
We previously reported on COVID-19–related employment lawsuits that we tracked from late March 2020 through early May 2020. Since then, the number of lawsuits has steadily risen as employers have resumed operations after shelter-in-place or stay-at-home orders were lifted and students returned to school in virtual or hybrid environments. To track this litigation and to identify trends, we developed an Interactive COVID-19 Litigation Tracker that details where COVID-19–related litigation is taking place by state, the industries affected, and the types of claims asserted against employers and educational institutions.
Election Day—Tuesday, November 3, 2020—is quickly approaching, and employees might ask for time off to vote. Employers that simply say “no” to their employees might be violating Texas law.
On June 26, 2020, Texas Governor Greg Abbott issued Executive Order No. GA-28, immediately scaling back the reopening of Texas due to substantial increases in the number of people testing positive for COVID-19 and the number of hospitalizations.
As Texas has gradually reopened, the number of COVID-19 cases and associated hospitalizations has dramatically increased. In response to local conditions, Bexar County Judge Nelson Wolff recently issued Executive Order NW-10, under which all businesses operating in the county must adopt a health and safety policy that requires both employees and customers to wear face coverings.
On June 17, 2020, Bexar County Judge Nelson Wolff issued Executive Order NW-10, requiring all businesses operating in the county, which includes San Antonio, to implement a health and safety policy to include the mandated use of face coverings by employees and customers when social distancing of at least six feet is not possible.
On May 26, 2020, Governor Greg Abbott issued a proclamation expanding the list of “Covered Services” permitted to reopen in Texas. The proclamation is consistent with Executive Order GA-23, which “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [Centers for Disease Control and Prevention].”
On May 18, 2020, Governor Greg Abbott issued Executive Order GA-23 as part of his three-phase plan to reopen the economy in Texas. The three-phase plan is outlined in a report entitled “Texans Helping Texans: The Governor’s Report to Open Texas.” Executive Order GA-23 is Phase II of the plan and follows Executive Order GA-18 (issued April 27, 2020) and Executive Order GA-21 (issued May 5, 2020). Executive Order GA-23 “continu[es] through June 3, 2020, subject to extension based on the status of COVID-19 in Texas and the recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force and the [U.S. Centers for Disease Control and Prevention] CDC.”
On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered.